5 July 2015

Does EVEL breach the Acts of Union?

Like many powerful, symbolic documents, almost nobody ever reads the Acts of Union. Magna Carta, "the constitution" in America -- the myth often fails to withstand an encounter with the text. I've had occasion over the past couple of days to revisit Great Britain's founding statute after this case from Lord Gray began circulating amongst SNP supporters on social media. You can understand why. If it had any substance, it might look like constitutional dynamite which could be deployed against David Cameron's "English votes for English laws" proposals. The circulator concluded enthusiastically:

"I found the 1953 ruling someone pointed out earlier and it is very interesting indeed. The articles of union say that members of parliament returned by Scottish constituencies cannot be excluded from the House of Commons. This means excluded from voting on any legislation This is unalterable. No government can change it. It would appear that if a government attempts to do this the union is dissolved with immediate effect."

I am sorry to report that not only is this dead wrong on almost every point -- but the logic of the argument being deployed here is unintentionally surreal. First, the missing background. This isn't a "ruling" and nor is it from 1953. It is a partisan legal paper written by Richard Keen - who has just been appointed the Tory government's law officer for Scotland. It was written for Lord Gray in 1998 against the backdrop of the first Blair government's proposals to strip hereditary peers out of the House of Lords. Gray, a Scottish peer, wasn't a happy bunny at the loss of his family's privileges. His paper argues that it would violate the Act of Union to exclude Scottish hereditaries from the House of Lords. Article XXII provides:

"That by virtue of this Treaty, Of the Peers of Scotland at the time of the Union 16 shall be the number to Sit and Vote in the House of Lords, and 45 the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain."

If Gray's case was right, and the Union provisions could not be amended "for all time coming" -- then the SNP's long term commitment to House of Lords repeal would also represent an outrageous breach with the letter of the Acts of Union. On this logic, Pete Wishart ought to be campaigning for the Scots lords in ermine to be restated. I don't know about you, but this doesn't particularly appeal to me.

And if we're going to be strict about it, we've got another problem. By the letter of the Articles, somebody is going to have to tell the 56 SNP MPs that the Union specifies for all time coming that there should only be 45 Scottish MPs, and at least eleven of them are going to have to seek employment elsewhere. Oh, and there's some more bad news about that independence referendum we all toiled away at back in September. The very first Article of the Acts of 1706 and 1707 reads as follows:

"That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom."

I doubt many Scottish nationalists would support that provision being inviolate. And it'll make republicans amongst us uncomfortable to learn that their democratic ambitions are to remain unconstitutional in our eternal kingdom until the end of time or the heat death of the universe -- just because a small cadre of elite opinion in the early 1700s said so. Considering Lord Gray's case, the House of Lords Privileges Committee, which included several judges, came to a similar conclusion. They rejected Gray's argument concluding that Article XXII of the treaty wouldn't be breached by giving him and his colleagues of the blood their marching orders. Indeed, this provision of the 1706 and 1707 Acts had already been repealed by Westminster some years earlier, in 1993 and 1964 respectively. And damn right too.

But even if you disagree with this interpretation - it isn't obvious that any provision of the Acts of Union are relevant to the EVEL proposals at all. Digging further into the text, Article 23 has a good deal to say about the privileges of the sixteen Scottish peers in the House of Lords, but is mum on the rights MPs could expect to exercise in the House of Commons. The problems with EVEL are contemporary problems, and not ones which can usefully be addressed through the lens of a centuries old mercantile charter. We are at risk of being in the absurd position of pushing arcane constitutional arguments which would require sixteen Scotch lords to sit in Westminster, but which do absolutely nothing to enhance the argument about the status of Scottish MPs.

Legal nationalism in Scotland is an interesting tradition, but despite my political inclinations, not one I have ever felt a huge amount of sympathy for. Colin Kidd's (2008) Union and Unionisms has an interesting discussion of evolving legal and political ideas since 1707 about whether the Acts of the Union are entrenched and still represent fundamental law in the UK. Lord President Cooper's celebrated comments in the (1953) case of MacCormick v Lord Advocateare much quoted. The Union settlement clearly preserved things which have been seen as pillars of Scottish identity since - the church, the distinct order of law.

But for myself, I have never understood the place of the Acts of Union in that tradition. I'm indisposed to treat a commercial deal about salt and beer and window taxes with much reverence. Indeed, this is a paradoxical seam in the wider tapestry of Scottish nationalism. For many Scottish nationalists, the Union was "bought and sold for English gold" by a parcel of Scottish rogues -- but the agreement those "rogues" struck is today invoked as if it was Moses and the Prophets, in pious tones. On any reckoning, this is a perplexing combination of historical ideas to hold. This is a crooked deal, and we insist that it must be enforced to the letter and forever.

UK Supreme Court justice, Lord Sumption, began a recent lecture on Magna Carta on provocative form. "It is", he said, "impossible to say anything new about Magna Carta, unless you say something mad. In fact, even if you say something mad, the likelihood is that it will have been said before, probably quite recently."The same often goes for those other mythic texts in the UK and Scottish constitutional tradition, like the rampantly anti-catholic 1689 Claim of Right or the Scottish feudal oligarchy envisaged by the declaration of Arbroath. Much of the contemporary force of these texts seems to derive from ripping them out of context and attributing to them democratic virtues and aspirations which would have seemed alien to the very people who drafted them. It is a conclusion to madden the lawyer, but the cultural significance of these documents is not exhausted by what they do or do not actually say.

Detached from their context, and their texts, these declarations and charters float freely in the popular constitutional imagination. Sometimes, they are used to promote a more democratic vision of the country's best traditions; sometimes for more reactionary purposes. In America, grown men don tricorn hats and 18th century militiamen uniforms, to argue that their constitution is betrayed by federal healthcare reforms. On this side of the pond, Tories are even now invoking Magna Carta neo-mediaevalism to justify hacking back the contemporary rights which citizens enjoy. And Scottish nationalists are appealing to the ancient and perpetual rights of Scottish peers to try to resist the Conservative solution to the very modern West Lothian question.

Our abiding passion for old documents and ancient sources of authority are fascinating -- but often strange. Very strange.

The kingdom bit is constitutionally important because it definitively means a territory which possesses internationally recognised sovereignty. Wales was only ever a principality (it had a prince). Be careful of what you wish for.

You appear to be suggesting that legal precendent can be cherry-picked under the Act of Union, and the establishment will only take from the sad cherry pie what currently suits their tastes, before it lets loose with the custard.

Surely a woeful indictment of Scottish (and what passes for British) law?

Well, up to a point. There is no cherry to be plucked which makes EVEL a sin under the Acts as some folk are contending -- but what I'm really suggesting is that we treat it like what it is. A historical document, of interest, but of limited contemporary relevance or force for contemporary disputes. It is precisely because it does not have the character of fundamental law and binding constitutional relevance that we could have an independence referendum last September. Linings and silver clouds...

So what of a judicial review on grounds that the decision to implement EVEL, in the manner presently proposed, is utterly unreasonable?Again, brandishing my gargantuan "not a public lawyer" banner, and conscious that this probably sounds like a first year public law student-type question, my understanding is that any decision made by a decision-making body is amenable to judicial review, save Acts of Parliament (due to Parliamentary Sovereignty). The issue with EVEL, therefore, is the fact that the executive plans to press ahead with implementing it without creating an EVEL Bill and seeing it pass happily through the Commons and the Lords. This, to my mind, means that it is susceptible to legal challenge. The Lords Act, on the other hand, was not susceptible to challenge as it was just that: An Act.If we go off of the Wednesbury criteria, anyone who seeks to challenge EVEL needs to show that the executive, as a decision maker, has acted unreasonably. In making any decision, the executive must “call [its] attention to the matters which [it] is bound to consider. [It] must exclude from [its] consideration matters which are irrelevant to what [it] has to consider. If [it] does not obey those rules, [it] may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.”Bad faith is also tantamount to unreasonableness. I would say that there is a strong case to be made that EVEL is an unreasonable proposal, on a number of grounds. When considering a constitutional matter, the executive ought to be bound to consider constitutional documents, such as the Treaty of Union. You have pointed out that the Treaty has been amended – indeed, many constitutional documents have been amended – however these amendments have (to my knowledge) always came as a result of legislation, not as a result of the naked exercise of executive power. This means that the constitutive documents of the United Kingdom are susceptible to the doctrine of implied repeal; nothing more. If Westminster were to pass an Act to end the United Kingdom, then the Union would end, whatever the 1707 Treaty may say about it persisting for ‘all time’. If, however, the executive, or a Minister, were to pass delegated legislation which caused the end of the Union, I’d say that they would be clearly acting ultra vires and that their actions could clearly be categorised as unreasonable. In this instance, as EVEL is set to be passed via a change to the Standing Orders instead of by a change to ‘the law of the land’, the executive could be said to be acting ultra vires. The Treaty can only be changed if it is repealed or impliedly repealed.At the moment, the Treaty of Union stands as a piece of legislation which the courts cannot disregard. Parliament can disregard it if it chooses to pass an Act which runs contrary to its provisions, but unless it passes an Act it cannot do so: The Treaty stands as the law and decision making bodies must obey the law, or else they are not taking into account all relevant factors in making their decision. It may seem strange that nationalists are framing their argument off the back of a document which is pointedly against everything that they stand for, but at the end of the day Scotland did say no: The Treaty does stand at present.

Of course, I completely take your point that the Treaty of Union does not at all say what most people think it does. Even at that, the executive isn’t taking into account all matters which it is bound to consider: Scotland voted to remain a part of the United Kingdom on the understanding that our elected representatives would stand on equal footing with all other elected representatives in the Westminster Parliament. EVEL was not mentioned at all pre-referendum. There’s a strong argument that the government is handling this in such a way that they could be accused of mala fides. Is petty political advantage really a good reason for changing the constitution of Parliament in such a way through the back door? At the end of the day, representatives of the supreme legislature are ultimately being rendered second class for reasons of mere geography alone. That, to me, screams bad faith.

A two parter, eh? Oh dear, my apologies... Two beers south on a Sunday night and this is what happens...

I think there may be a shortcut, and aptly historical, answer to that highlighted by the recent Coulson decision by the Inner House. The (1689) Bill of Rights, bits of which are still in force, provides: "that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. I imagine any challenge would be met by a claim of parliamentary privilege.

The idea of that letter being a 'Declaration' seems to be a modern reading: as Andrew Hook suggested, maybe a way of buttressing the fantasy that Jefferson based the DOI on it.

It is clear that all sich documents mean pretty much what you want them to mean. The DOI amendment on bearing arms envisaged free men with rifles or musket rather than a shelf of machine guns - in any case the main practical reason behind the measure was to ensure that slaveholder patrols were well armed, able to quash slave rebellions with ease.

The bit about the right to bear arms in the DOI relates to the right to maintain 'well-armed militias' because at that time there was no US army but there was a well armed British army afflicting the rebellious American lieges. Again, context is everything. Since the 'well-armed militias' have transformed into the US army to defend the country, there is no constitutional right for individuals to bear arms. The right to arms in any case related to groups of men, forming defensive militias against a foreign invading enemy, and not to lone individuals.

As with much of American history, the context of the Second Amendment has indeed been lost - seen and taught in US history as a measure for freedom it was, in the slave states, a reinforcement of existing practice to keep the slaves down -

'The real reason the Second Amendment was ratified, and why it says "State" instead of "Country" (the Framers knew the difference - see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia's vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that . . . and we all should be too.In the beginning, there were the militias. In the South, they were also called the "slave patrols," and they were regulated by the states.

In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state. The law defined which counties had which armed militias and even required armed militia members to keep a keen eye out for slaves who may be planning uprisings. '

The contemporary reading of even major documents can get diffused or even lost as time goes by - the religious aspect of the riots against the 1707 Treaty is no longer of relevance to most Scots yet it was important to many Scots at the time - as soon as it became obvious that the Catholics were to continue to be kept down, part of the mob seems to have lost its incentive.

And while the person who drafted the Arbroath letter may have genuinely believed that Jesus had a special regard for the Scots, few of today’s nationalists would (well, in public at least) promote that belief.

1. The Declaration of Independence has naught to do with the 2nd Amendment, which is an amendment to the Constitution of the United States - one of ten that form the Bill of Rights.

2. Your interpretation of the 2nd amendment has long been debunked. The Supreme court decisions, Heller and McDonald, established the right to keep and bear arms is an INDIVIDUAL right and NOT a collective one (See McDonald v. Chicago, 561 U.S. 742 (2010)).

Would respectfully suggest SOME basic research before pontificating further. Google is your friend here.

Lord Cooper's judgement in McCormack vs the Lord Advocate (1953) where legal importance could be given to the Lord Advocate's own concession to Lord Cooper, " admitting the Parliament of Great Britain could not alter or repeal fundamental and essential conditions of the Acts of Union." and such essential conditions can only be agreed and altered by the original signatory sovereign parliaments to the Treaty.

How is denying MPs the right to vote in the UK Parliament on issues before the UK Parliament, not the alteration of an essential condition of the Treaty?

Would the proper UK constitutional resolution to Evel be the creation of an English Parliament under the same constitutional process which set the 1998 Scotland Act in place?

I understand for political reasons this as good as ends the UK Parliament because it would be left with little to legislate over and become increasingly irrelevant. It also depends whether the right to vote in the UK Parliament is considered 'an essential condition'.

Andrew why is the Claim of Right 1689 (Scotland) still 'in law' and the current Queen gave an oath to the Lord Advocate, Secretary of State for Scotland and Moderator of the Church of Scotland under this statute for her Scottish Crown, the night before her coronation at Westminster?

As a historical note, the Claim of Right was submitted to William of Orange in May 1689 when delegates from Scotland representing the Thrie Estaits (which had met as a Convention in March to decide on the matter of James VII's apparent abdication) decided James had abdicated and offered William the Crown of Scotland. Whilst William accepted the Crown, he merely read the Claim of Right. The commissioners found they had no commission to insist that he touch the Claim with the sceptre as a condition of accepting the Crown. William read it, and laid it aside. It seems to have the status of a kind of gentleman's agreement, whereby William merely noted its contents.

I think people latch onto such things because we do not have a constitution to focus on. I don't think the American examples do the work you want them to, firstly because their constitution is manifestly still a live legal document which their supreme court rules on regularly and secondly because it is modifiable. It has not been very recently and increasing partisanship in the Houses make that less likely but it is still perfectly possible to do that, nothing legal stops it.

As for documents like The Declaration of Arbroath, I agree that many of the excerpted words are too shorn of their context, but they are still fine words and it is the independence of them, appealing to an external authority for support against an overbearing neighbour that resonates.

And note it was used in the Civil War period after the Union of Crowns by a non entirely noble Scottish parliament to insist on their right of approval of the succession which caused some ructions with the English if you will recall. So later persons have used it as a live, reinterpretable document some time after its signing. There is precedent.

Good article (as usual) gave me some food for thought.Old "contracts" are often overtaken by new laws,there is law of contract which states that no contract is legal,if it is impossible,illegal or signed while under influence of alcohol or drugs,if memory serves me well (usually not) there are several outs in all contracts and Magna Carta,Treaty of Union etc,are all contracts,just something I wondered if that could be added to the mix.I also seem to remember that nobody can make a contract that makes another person liable to fulfil contract unless the agreement of the other person is agreed first,Tripartite agreement is then created.Subsequent changes is also to be considered i.e. new inventions different political situations wars etc; These are just mingled (maybe mangled) thoughts from some studies I did 40 odd years ago and could all be just mince,hmm lunch time.

I think Sartorial raises a very good point about the Standing Orders mechanism for Evel as being open to judicial review on the grounds of 'unreasonableness' and because it is not an Act of Parliament. But it is not coming as an act of parliament for the precise reason that it could be deemed unconstitutional and fail. They are basically pulling a fast one, and are on shaky ground. They are hoping we are too useless and gullible that we will just fall for it.

Evel is also in bad faith and invalidates the No referendum result. Whilst voters were told that if they voted No they could have the best of both worlds, Evel was not mentioned. Therefore it is a material change that can necessitate a fresh referendum.

How many of the 55% would have voted to remain in the union in the knowledge that Scottish MPs would be second class and not possess the same voting rights as English MPs, whilst at the same time we would remain fiscally joined at the hip?

As long as there is one centralised fiscal system (and this was set up by the 1707 Act of Union, even if none of the clauses actually specify this) with taxes being collected from Scotland by 'England' (i.e., by agencies located in England) then there can be very few laws passed that are purely English laws. Only territorially limited laws which have no fiscal implications whatsoever (like the fox-hunting ban) can be said to be English only.

No relevant legal knowledge at all on my part, but if the Act of Union was brought about under duress - which it was, because the barons were blackmailed into it upon threat of trade embargoes and bankruptcy - does the Treaty have legitimacy?

'History' has no positive value. Most folk aren't historians, and at their hands history varies from benignly irrelevant to utterly toxic. It has a negative value all the same, which is to show the fly the way out the fly-bottle, and that's what academic historians and legal hermeneuts are supposed to get paid for. But academic historians are not less political - or even theological - than anyone else. Kidd is a virulently partisan unionist, for example, and he thinks that about half the population have the corruption of Satan coursing in their veins. 'History' is a parasite on the the narrative and temporal aspects of human cognitive function.

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“... the erudite and loquacious Peat Worrier who never knowingly avoids a prolix circumlocution.” ~Love and Garbage

“My initial mind picture was of a scanty bikini'd individual wallowing in a bath tub of peat. However I've since learned to warm to him, and like peat he's slow to draw but quick to heat...” ~Crinkly & Ragged Arsed Philosophers

Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.